Traditionally, violations of post-employment restrictive covenants were based on former employees actively contacting customers or past co-workers in the real world, or setting up a new brick and mortar business doing the same thing within a confined mile radius. However, the advent of e-commerce and social media has blurred the lines of acceptable (or even legal) behavior in the competitive business environment. Routine activities on sites such as Facebook, LinkedIn and Twitter can now run afoul of past employment agreements. This is especially true in the last few years when social media has expanded from its namesake of socializing to more of a networking platform.
The use of social media communications as evidence in trial is nothing new. An opposing party in ongoing litigation will dig for whatever “dirt” it can find, but an ex-employer will rarely keep tabs on a former employee to uncover actionable behavior. Perhaps this is why people are less cautious in their post-employment actions. But this type of carelessness can be discovered quite easily with the click of a button. Facebook currently has over 1 billion users, LinkedIn is hovering around 400 million users, and Twitter is gaining speed at 300 million users. Consider the following post: “This new company I am working for is amazing…If anyone is looking for new opportunities, give me a call.” This could be damaging to a former employer if that poster is connected to a former co-worker though Facebook or LinkedIn. A seemingly innocent post could be: “Anyone aware of someone who would be interested in [xyz product] or [xyz service]?” A customer of the ex-employer could receive this message, thereby resulting in a possible non-compete violation.
The case law on this subject is still in its infancy, and we have yet to see how this body of law will shape up. As sites such as Facebook, LinkedIn and Twitter gain more members, courts could take divergent views on post-employment activity. One viewpoint would be that the far-reaching grasp of social media necessitates stringent legal boundaries. On the other hand, social media can become so ubiquitous in the future that its regulation would be futile, resulting in certain restrictive covenants becoming unenforceable. For the time being, it would be prudent for employers to make every effort to enforce these covenants by keeping a watchful eye on the extracurricular activities of former employees.